Wednesday, June 05, 2013
Does MLB have a case this time?Posted by Eugene Freedman
Just cause doesn’t mean just ‘cause. You’re probably thinking about your non-unionized workplace. Your employer can discipline or fire you for a good reason, a bad reason, or no reason at all. In a workplace represented by a union, like Major League Baseball’s, it doesn’t work that way.
In cases of conduct and discipline, the employer bears the burden of proof. That burden is by a preponderance of the evidence.
I have seen cases where the union so thoroughly disproves the employer’s case through nothing more than cross-examination of the employer’s witnesses that it does not even put on a single defense witness. I’ve also seen cases where the employer just flat-out fails to prove compulsory elements of its case. Without proving certain elements, the entire argument falls apart like a house of cards.
Generally, once an employer proves its case, it must also prove that the ensuing discipline is reasonable and appropriate for the conduct. What’s interesting in MLB and the MLBPA’s Joint Drug Agreement is that the parties have agreed to the penalties up front. There is no argument on the question of penalty and no mitigation.
Moreover, the conduct involved under the Joint Drug Agreement (JDA) is a strict liability offense. Once proven to have occurred, normally through a positive test, there is no requirement to show intent to violate the rules. So, it should be relatively simple for MLB to suspend a player for violating the JDA, right?
Well, mostly. Ryan Braun’s prior case proved that it’s not a positive test if the testing protocols are not followed, following the tenets of the fruit of the poisonous tree theory of criminal law. If the evidence is obtained or maintained improperly, it cannot be relied upon and for the purposes of the hearing officer, does not exist.
With all that as prologue, we are now presented with a report that MLB intends to suspend over 20 players without a positive test. How is that even possible? MLB is going to have to prove its case of possession of substances on the banned list through circumstantial evidence rather than use through testing evidence. It doesn’t have any player arrest or conviction for possession going for it, either. MLB has to prove the entire case for itself—and it’s going to be very difficult to prove.
First and foremost, MLB’s key witness is very weak. Craig Calcaterra explains why here. But for many of the alleged violators, MLB’s witness likely was dealing with intermediaries. If he never met the player in person and did not directly provide the PEDs to them, the case becomes even more tenuous.
But beyond that, there’s something that MLB has to go up against in this case: its own testing regime. MLB has called its testing the best in sports, or at least U.S. professional sports. Meanwhile, except for a mere few of the players on the list, all of them have tested negative, repeatedly negative, over the course of the period they are alleged by the questionable witness to have received and used these banned substances.
MLB is doing nothing more than undermining its own testing system in the eyes of the media and the public. “Yes, Mr. Arbitrator, we believe in our testing system, it’s the best around, and these players tested negative on multiple occasions, but you should ignore that.” That sounds more like exculpatory evidence than it does corroborating evidence for the testimony to be offered by MLB’s witness.
But doesn’t that also implicate the players who tested positive and who also appear on the list? Of course it does. But they have served their suspensions. They can’t be disciplined twice for the same offense, so how would MLB prove that possession didn't occur at the same time as their positive test? Wanting the test and the alleged possession to be separate offenses is one thing, but MLB will have to prove it to be more reasonable than not by a preponderance of the evidence.
And what of the other rumored charge—lying about PED usage during the investigation? That is a compounding charge that relies upon the first charge being proven. If MLB can’t prove PED usage or possession, how can it further prove lying during the investigation?
It would seem to me that this is just another attempt by MLB to undermine its own product: its players. Surely, it has a goal better than challenging its testing program publicly and losing a host of very public discipline cases and ultimately firing more arbitrators.
MLB representatives have stated at many professional labor relations conferences over the past couple of years that it has raised its game. It has hired professionals to handle labor law to match those of the MLBPA, who had been beating them for decades. This case, at first blush, appears to be just another in a long line of overreaching by the league and the owners in a multi-decade-long attempt to pretend that it doesn’t have to follow its contract or labor law.
Eugene Freedman is Deputy General Counsel for a national labor union. He received a degree from Cornell University in Industrial & Labor Relations and his law degree from University of Maryland. Follow him on twitter @EugeneFreedman.